Having claimed liberty as its animating principle, the government must now bear witness to what type of liberty it means.
To throw Trident, teachers or transport to the fiscal wolves takes political guts, but legal aid is a safer sacrificial victim. This least glamorous part of the welfare state long since lost its fat but, reckoning that nobody likes a lawyer, the Ministry of Justice has now settled with the Treasury on penurious terms that could starve the system entirely. True, the public bill for criminal defence is hard to contain, but one reason for this is that parliament has functioned as a criminal law factory. Legal aid funding for employment and personal injury claims evaporated long ago, and the residual support – available to deal with fundamental threats such as the loss of a home, or a child's custody – is rigorously means-tested. Further cuts will finally shred the safety net.
The best publicly funded lawyers often work as hard as their corporate cousins, but for social-worker salaries. They have had a miserable decade and are set for another. Small solicitors' firms, which provide one of the few secure minority ethnic footholds in the professions, are going to the wall. Ministers may shrug off such complaints as yet another case of "producers" whingeing about the cuts. What they cannot be shrug off, however, is the principle of access to justice. Having claimed liberty as its animating principle, the government must now bear witness to what type of liberty it means. Real freedom requires not just notional rights, but the means to enforce them. Only the desiccated libertarianism that damns every government function except those which preserve the property of the rich would deny this. But it hardly fits with the coalition's emphasis on social mobility, and many within it understand that access to justice matters.
The challenge is to translate good instincts into good policy for cash-strapped times. That requires rethinking how the law operates. If there is no money for justice, then justice must be made cheaper to provide. Reports on streamlining statutes – like the Law Commission's work on housing – must no longer gather dust for lack of parliamentary time. The potential role for judges in containing costs, which the Jackson report recommended, must be actualised. Every possible saving on crime must be seized, including using penalty notices to keep more cases out of court. And if a proper defence is unaffordable under the adversarial system then it is time to ask whether an alternative is required for certain categories of crime.
The government seems less inclined to ask such questions than to pinch pennies from the public side of the scales of justice. Should it unbalance them, the coalition between liberal Conservatives and Liberal Democrats will hardly deserve to be called liberal at all.
Hadgkiss Hughes & Beale provide Legal Aid funded advice for Family and Criminal work.
